2.24.2004

First of all, I owe you full disclosure: I adamantly oppose this idea. I think gay marriage offends the civil rights protected under the Constitution. Now you know.

The interesting thing to me about Bush's push to amend the Constitution to basically carve out a section of the population is that Bush and his legal advisors also probably think the Constitution, in its current form, protects gay marriage. If not, why the sudden vitriol to specifically declare that the right of marriage shall not extend to homosexuals? Indeed, others appear to have made this inference, such as the article I linked above:

The Bush White House fears the law could be struck down and allow gay couples married in one state to have the same rights as traditionally married couples in all other states.

For one, the fact that we've entered a full blown election season has much to do with it. It should surprise few that Bush has taken steps to shore up his conservative base. He did the same thing in 2000 by talking about the importance of faith-based initiatives, and even endured some major criticism for campaigning at Bob Jones University.

But perhaps more importantly, the stage seems somewhat set for a Supreme Court ruling that the Constitution protects gay marriage.

For one thing, we have a federal statute that begs for judicial inquiry in the Defense of Marriage Act, signed into law by President Clinton (somewhat curiously, perhaps). The gist of the DMA is that, for federal purposes, marriage constitutes a legal union between a man and a woman. So in any federal law referencing marriage (the Internal Revenue Code is a great example), rights of married persons cannot extend to gay couples joined civilly in states that have allowed such relationships.

Moreover, the gay community has mobilized, and their rapid mobilization has caught the country somewhat off-guard. Their assault on the clerk's office in San Francisco has proven a master stroke of planning, as many other municipalities seem ready to fall behind San Francisco. I thought I saw today that the California Supreme Court will address the issue, but I can find no news story confirming it.

Thirdly, and perhaps most interesting, we have the Lawrence v. Texas decision from the U.S. Supreme Court that came out last summer, declaring that states may not make homosexual sex illegal.

The decision indicates some sympathy on the high court for homosexuals and their putative rights. Moreover, the court decided the case on a 5-3 basis, with Justice O'Connor joining the majority in the judgment but not the opinion. The essential 6-3 decision adds some force to the ruling, and gives interesting grounds for speculation. Predictably, Justices Breyer, Ginsburg, Souter and Stevens would likely vote that the DMA violates the Constitution. Justice Kennedy, who wrote the opinion in Lawrence might or might not, as he has a historically conservative side (which explains the surprise of many that he authored the Lawrence opinion, but which perhaps also gave it more force). Justice O'Connor, who would have ruled against Texas on equal protection grounds rather than substantive due process grounds, would constitute another critical swing vote, though perhaps more willing to side with the liberal wing of the Court than Justice Souter on this potential issue. Justices Scalia and Thomas, and Chief Justice Rehnquist, would certainly uphold the validity of the DMA.

Yet though the stage appears set, the Defense of Marriage Act has curiously evaded any constitutional challenge to this point. Which leaves us with a political determination from Congress and the president, but not a legal determination from the federal courts. It would seem to me that something this important would have become a focus of ACLU litigation somewhere.

But assuming this does happen at some point, the big question I have, if and when the Supreme Court considers a challenge to the DMA and if they can declare it unconstitutional, is where they might find the grounds for such a ruling.

Lawrence v. Texas relied on the 14th Amendment. However, the substantive due process and equal protection doctrines of that amendment apply only to the states, not to the federal government. If I recall my Constitution correctly, the federal government must observe the due process dictates of the 5th Amendment, but that due process seems a wholly different animal than the one referenced by the 14th Amendment. No similar equal protection language exists in the Constitution applying to the federal government.

Perhaps the Court could establish under the 14th Amendment that the states could not make gay marriage illegal, and then, using the 9th Amendment, claim that it is axiomatic that if the states cannot deny a civil right, the federal government certainly cannot deny it. But the Constitutional grounds remain somewhat curious, at least to me.

Anyway, the thing I don't understand is how the DMA has escaped constitutional challenge to this point, but with everything happening right now, perhaps one will come very soon. I really doubt President Bush could manage to get the Constitution amended without the Supreme Court first passing on the issue, so I ultimately believe that the first important clarification will come with a Supreme Court interpretation of the Defense of Marriage Act, if it ever indeed happens.

Under the current Court, gay marriage might have a chance. 4 more years under Bush (which will almost certainly result in the retirement of Chief Justice Rehnquist and a new, equally conservative chief, and may likely result in the retirement of Justice Stevens, the liberal bloc's eldest member) might very well change that.